Lstar Holdings Pty Ltd v Ta [2021] NSWCATCD 62

Lstar Holdings Pty Ltd v Ta [2021] NSWCATCD 62

The Tenant had not complied with cll 7(4) and 7(6) of the Rental and Other Commercial Leases (COVID-19) Regulation (No 3) 2020 because it failed to renegotiate in good faith, failed to respond to the Landlord's rent waiver and deferral offer, and did not attend mediation with the Small Business Commissioner. The Landlord was therefore taken to have complied with cl 7 and was not prohibited from terminating and re-entering for the Tenant's failure to pay rent. The Tenant's rental default was persistent and significant, it offered no undertaking to pay arrears, there was no evidence of capacity to pay arrears or ongoing rent, and the Lease was shortly to expire; accordingly relief against...

Jurisdiction
Australia
Judgment Date
19 March 2021
Procedural Posture
Retail Lease Dispute Concerning COVID 19 Commercial Leasing Regulation, Termination, Re Entry and Relief Against Forfeiture / Principal Judgment on Tenant's Application for Orders Allowing Re Entry to Leased Premises After Appeal Panel Interim Orders
Outcome
Application dismissed; interim Appeal Panel orders set aside in part.
Legal Topics
['impacted Lessee' 'rental and Other Commercial Leases (covid 19) Regulation (no 3) 2020' 'prescribed Action' 'non Payment of Rent' 'relief Against Forfeiture' 'termination and Re Entry' 'unauthorised Building Works']
['retail Leases' 'commercial Leasing' 'covid 19 Leasing Regulation' 'equity'] ['impacted Lessee' 'rental and Other Commercial Leases (covid 19) Regulation (no 3) 2020' 'prescribed Action' 'non Payment of Rent' 'relief Against Forfeiture' 'termination and Re Entry' 'unauthorised Building Works']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Retail Lease Dispute Concerning COVID 19 Commercial Leasing Regulation, Termination, Re Entry and Relief Against Forfeiture / Principal Judgment on Tenant's Application for Orders Allowing Re Entry to Leased Premises After Appeal Panel Interim Orders

Legal Issues

  1. 1 ['Whether the Tenant was an impacted lessee within the meaning of the Retail and Other Commercial Leases (COVID-19) Regulation (No 2) 2020 and/or the Rental and Other Commercial Leases (COVID-19) Regulation (No 3) 2020.' 'Whether the Landlord was prevented from terminating the Lease and re-entering the Premises because of the Regulations.' 'Whether the Regulations prevented termination for the non-financial defaults set out in the Notice of Termination and Re-Entry dated 5 January 2021.' 'Whether the Tenant breached the Lease as alleged by failing to pay rent.' 'Whether, if the Lease was lawfully terminated, the Tenant was entitled to relief against forfeiture.' 'Whether the Tenant was entitled to damages for breach by the Landlord.']

Ratio Decidendi

The Tenant had not complied with cll 7(4) and 7(6) of the Rental and Other Commercial Leases (COVID-19) Regulation (No 3) 2020 because it failed to renegotiate in good faith, failed to respond to the Landlord's rent waiver and deferral offer, and did not attend mediation with the Small Business Commissioner. The Landlord was therefore taken to have complied with cl 7 and was not prohibited from terminating and re-entering for the Tenant's failure to pay rent. The Tenant's rental default was persistent and significant, it offered no undertaking to pay arrears, there was no evidence of capacity to pay arrears or ongoing rent, and the Lease was shortly to expire; accordingly relief against...

Court Disposition

Application dismissed; interim Appeal Panel orders set aside in part.

Orders

  • ['The application is dismissed.' 'Orders 3(a) and (c) of the Tribunal made on 11 January 2021 in matter AP 21/00887 are set aside.']